FILED: NEW YORK COUNTY CLERK 07/06/ :18 PM INDEX NO /2006 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2016. Exhibit 21

Transcription

1 FILED: NEW YORK COUNTY CLERK 07/06/ :18 PM INDEX NO /2006 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2016 Exhibit 21

2 SCAf.r.EllONWIOl11l1, SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: / 06 HARLEM REAL ESTATE LLC and CITARELLA OPERATING LLC, REPLY TO AMENDED Plaintiff COUNTERCLAIMS -against- NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION AND THE CITY OF NEW YORK, Defendant X Plaintiffs, HARLEM REAL ESTATE LLC ("Harlem" of~iilm") and CITARELLA OPERATING LLC ("Citarella" and together with Harlem, the "Plaintiffs"), as and for their Verified Reply to the counterclaims of Defendants NEW YORK CITY ECONOMIC: DEVELOPMENT CORPORATION ("EDC") and THE CITY OF NEW YORK (the "City" : and together with EDC, the "Defendants") as asserted in the Defendants' "Verified Answer with Supplemental and Amended Counterclaims" dated February 28, 2012 (the : "Counterclaims"), respectfully allege as follows: 1. With respect to paragraph "49" of the Counterclaims, Plaintiffs deny. knowledge or information sufficient to form a belief as to the truth of the allegations ' contained in paragraph "49" of the counterclaims and specifically refer the Court to its Order dated June 5, 2009 and entered in the Office of the Clerk of Nassau County on: June 10, 2009 for its prior rulings as to the allegations in this paragraph (the "Order"). 2. Upon information and belief, Plaintiffs admit the allegations contained in ' paragraph "50" of the Supreme Court Records Online Library - page 1 of 21

3 3. Upon information and belief, Plaintiffs admit the allegations contained in. paragraph "51" of the 4. With respect to the allegations in paragraph "52" of the Counterclaims, Plaintiffs admit that on or about May 19, 2000, Harlem and the EDC entered into a contract of sale to purchase certain premises for the sum of $850, and respectfully refer the Court to the document referred to therein for the true and accurate contents thereof and deny the remainder of the allegations contained therein. 5. With respect to paragraph "53" of the Counterclaims, Plaintiffs, upon information and belief, admit that a resolution approving the sale of the Premises to Harlem was adopted by the Manhattan Borough Board and respectfully refer the Court to the resolution referred to therein for the true and accurate contents thereof. Further, with respect to that portion of paragraph "53" relating to Section 384(b)(4) of the New York City Charter, Plaintiffs neither admit nor deny said allegations to the extent that same call for a legal conclusion. Plaintiffs deny knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in paragraph "53" of the 6. With respect to paragraph "54" of the Counterclaims, Plaintiffs admit that. the EDC conveyed the Premises to HRE by Deed dated as of May 3, 2001, which Deed was recorded in the Office of the City Register on or about May 24, 2001 at Reel 3294, : Page 2166 and deny the remainder of the allegations contained therein and respectfully. refer the Court to the Contract of Sale and Deed referred to therein for the true and accurate contents thereof. Supreme Court Records Online Library- page 2 of21 2

4 7. With respect to paragraph "55" of the Counterclaims, Plaintiffs neither admit nor deny the allegations contained therein and respectfully refer the Court to the document referred to therein for the true and accurate contents thereof, but admit that ' pursuant to the Deed HRE was only obligated to utilize the Premises for the purposes set forth in the Deed for a period of five (5) years from the date of the Deed. 8. With respect to paragraph "56" of the Counterclaims, Plaintiffs admit that Harlem entered into a Modification of Deed with the EDC and respectfully refer the ' Court to said Modification of Deed for the true and accurate contents thereof, admit that Harlem's time to complete rehabilitation work at the Premises was extended and deny the remainder of the allegations contained therein. 9. With respect to paragraph "57" of the Counterclaims, Plaintiffs admit that they entered into a Modification of Deed with the EDC to extend HRE's time to complete the rehabilitation of the Premises and respectfully refer the Court to the Modification referred to therein for the true and accurate contents thereof and deny the remainder of the allegations contained therein. 10. With respect to paragraph "58" of the Counterclaims, Plaintiffs neither admit nor deny the allegations contained therein and respectfully refer the Court to the Modification referred to therein for the true and accurate contents thereof. 11. With respect to paragraph "59" of the Counterclaims, Plaintiffs neither ' admit nor deny the allegations referred to therein and respectfully refer the Court to the Modification referred to therein for the true and accurate contents thereof. Supreme Court Records Online Library - page 3 of 21 3

5 12. With respect to paragraph "60" of the Counterclaims, Plaintiffs neither ' admit nor deny the allegations referred to therein and respectfully refer the Court to the ' Deed referred to therein for the true and accurate contents thereof. 13. Plaintiffs neither admit nor deny the allegations contained in paragraph. "61" of the Counterclaims and respectfully refer the Court to the Order for its prior : rulings as to the allegations in '11"61" of the 14. With respect to paragraph "62" of the Counterclaims, Plaintiffs admit that on or about July 25, 2006, the EDC forwarded a letter purporting to be a Notice of ; Default, neither admit nor deny the remainder of the allegations contained therein and : respectfully refer the Court to the Notice referred to therein for the true and accurate. contents thereof and to the Order for its prior rulings as to the allegations in '11"62" of ; the 15. With respect to paragraph "63" of the Counterclaims, Plaintiffs neither admit nor deny the allegations therein and respectfully refer the Court to the Notice referred to therein and the Order for the true and accurate contents thereof and to the Order for the Court's prior rulings as to the allegations in '11"63" of the 16. With respect to paragraph "64" of the Counterclaims, Plaintiffs neither admit nor deny the allegations therein and respectfully refer the Court to the Order for ; its findings with respect to the allegations contained in '11"64" of the 17. With respect to paragraph "65" of the Counterclaims, Plaintiffs admit that on or about August 23, 2006, they commenced the instant action by Order to Show : Cause seeking a preliminary injunction and obtained a temporary restraining order and Supreme Court Records Online Library - page 4 of 21 4

6 respectfully refer the Court to the documents referred to therein for the true and ' accurate contents thereof and deny the remainder of the allegations contained therein. 18. With respect to paragraph "66" of the Counterclaims, Plaintiffs admit that, on or about March 6, 2007, the Court issued a Decision and Order, which was entered in! the Office of the Clerk of New York County on March 13, 2007 which, among other' things, denied Plaintiffs' motion for a preliminary injunction and respectfully refer the, Court to the Decision and Order referred to therein for the true and accurate contents thereof. AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' FIRST COUNTERCLAIM 19. With respect to paragraph "67" of the Counterclaims, Plaintiffs repeat and, reallege each and every allegation set forth in this Reply as if fully set forth herein. 20. With respect to p~agraph "68" of the Counterclaims, Plaintiffs neither ' admit nor deny the allegations contained therein and respectfully refer the Court to the. Deed referred to therein for the true and accurate contents thereof and to the Order for i its determinations with respect to the allegations contained therein and specifically admit that pursuant to the Deed HRE was only obligated to utilize the Premises for the 1 purposes set forth in the Deed for a period of five (5) years from the date of the Deed. 21. With respect to paragraph "69" of the Counterclaims, Plaintiffs neither' admit nor deny the allegations contained therein and respectfully refer the Court to the Order for its determinations with respect to the allegations contained therein and the ' Deed referred to therein for the true and accurate contents thereof. Supreme Court Records Online Library - page 5 of 21 5

7 22. Plaintiffs admit that upon the breach of the condition subsequent the, estate conveyed by the EDC to HRE pursuant to the Deed reverted to the EDC, deny knowledge or information sufficient to form a belief as to the truth of the remainder of ' the allegations contained in paragraph "70'' of the Counterclaims and respectfully refer : the Court to the Order for its determinations with respect to the allegations contained therein. 23. With respect to respect to paragraph "71" of the Counterclaims, Plaintiffs ' deny the allegations contained therein to the extent that they call for a legal conclusion ' and deny knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in paragraph "71" of the Counterclaims and, respectfully refer the Court to the Order for its determinations with respect to the allegations contained therein. 24. Plaintiffs neither admit nor deny the allegations contained in paragraph "72" of the Counterclaims and respectfully refer the Court to the Order for its ' determinations with respect to the allegations contained therein. 25. Plaintiffs admit that HRE' s interest in the Premises was terminated and : reverted to the EDC at the earliest thirty (30) days after the Notice of Default and at the latest the date of the Order, neither admit nor deny the remainder of allegations ' contained in paragraph "73" of the Counterclaims and respectfully refer the Court to the Order for its determinations with respect to the allegations contained therein. 26. With respect to paragraph "74" of the Counterclaims, Plaintiffs admit that. title to the Premises reverted in the EDC at the earliest thirty (30) days after the Notice Supreme Court Records Online Library - page 6 of 21 6

8 of Default and at the latest the date of the Order and respectfully refer the Court to the Order for its determinations with respect to the allegations contained therein. 27. With respect to paragraph "75" of the Counterclaims, Plaintiffs admit that the Premises have been conveyed to the EDC and respectfully refer the Court to the, Order for its determinations with respect to the allegations contained therein. AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' SECOND COUNTERCLAIM 28. With respect to paragraph "76" of the Counterclaims, Plaintiffs repeat and reallege each and every allegation set forth in this Reply as if fully set forth herein. 29. With respect to paragraph "77" of the Counterclaims, Plaintiffs admit that EDC has had exclusive possession of the Property and has ejected HRE therefrom and respectfully refer the Court to the Order for its determinations with respect to the allegations contained therein. AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' THIRD COUNTERCLAIM 30. With respect to paragraph "78" of the Counterclaims, Plaintiffs repeat and reallege each and every allegation set forth in this Reply as if fully set forth herein. 31. Plaintiffs deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "79" of the Counterclaims and respectfully refer the Court to the Order for its determinations with respect to the. allegations contained therein. Supreme Court Records Online Library - page 7 of 21 7

9 32. Plaintiffs deny the allegations contained in paragraph "80" of the : AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' FOURTH COUNTERCLAIM 33. With respect to paragraph "81" of the Counterclaims, Plaintiffs repeat and ; reallege each and every allegation set forth in this Reply as if fully set forth herein. 34. With respect to paragraph "82" of the Counterclaims, Plaintiffs neither! admit nor deny the allegations in paragraph "82" to the extent that same calls for a legal conclusion and otherwise deny the allegations contained therein. 35. Plaintiffs deny the allegations contained in paragraph "83" of the : 36. With respect to paragraph "84" of the Counterclaims, Plaintiffs neither, admit nor deny the allegations in paragraph "84" to the extent that same calls for a legal ' conclusion and otherwise deny the allegations contained in paragraph "84". 37. With respect to paragraph "85" of the Counterclaims, Plaintiffs neither i admit nor deny the allegations contained therein to the extent same are vague and ' otherwise deny knowledge or information sufficient to form a belief as to the truth of! the allegations contained therein and deny that Plaintiffs had a duty to correct purported violations at the Property that is the subject of this action. 38. With respect to paragraph "86" of the Counterclaims, Plaintiffs neither ; admit nor deny the allegations contained therein to the extent that same are vague : Supreme Court Records OnUne Library - page 8 of 21 8

10 and/ or to the extent that they call for a legal conclusion and otherwise deny knowledge or information sufficient to form a belief as to the truth of same. 39. With respect to paragraph "87" of the Counterclaims, Plaintiffs neither, admit nor deny same to the extent that they call for a legal conclusion and respectfully : refer the Court to the Building Code Provision referred to therein for the true and accurate contents thereof. 40. Plaintiffs deny knowledge or information sufficient to form a belief as to : the truth of the allegations contained in paragraph "88" of the AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' FIFTH COUNTERCLAIM 41. With respect to paragraph "89" of the Counterclaims, Plaintiffs repeat and, reallege each and every allegation set forth in this Reply as if fully set forth herein. 42. Plaintiffs deny knowledge or information sufficient to form a belief as to : the truth of the allegations contained in paragraph "90" of the 43. Plaintiffs deny the allegations contained in paragraph "91" of the 44. Plaintiffs deny knowledge or information sufficient to form a belief as to i the truth of the allegations contained in paragraph "92" of the AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' SIXTH COUNTERCLAIM Supreme Court Records Online Library - page 9 of 21 9

11 45. With respect to paragraph "93" of the Counterclaims, Plaintiffs repeat and : reallege each and every allegation set forth in this Reply as if fully set forth herein. 46. Plaintiffs neither admit nor deny the allegations contained in paragraph "94" of the Counterclaims to the extent that same calls for an interpretation of the Order of this Court and respectfully refers the Court to said Order for the true and accurate contents thereof. 47. Upon information and belief, Plaintiffs admit that on or about June 11, 2009, Notice of Entry of the Order was served. 48. With respect to paragraph "96" of the Counterclaims, Plaintiffs admit that, on or about July 9, 2009, they moved by Order to Show Cause to, inter alia, stay the ' eviction of the Citarella Store in the captioned action and respectfully refer the Court to that Order to Show Cause for the true and accurate content thereof and deny the i remainder of the allegations contained in paragraph "96" of the 49. Plaintiffs admit the allegations contained in paragraph "97" of the 50. With respect to paragraph "98" of the Counterclaims, Plaintiffs neither ' admit nor deny the allegations contained in '\["98" of the Counterclaims to the extent that same are vague, admit that on or about July 8, 2009, Plaintiffs served and filed a Notice of Appeal from the Order and respectfully refer the Court to said Notice of. Appeal for the true and accurate contents thereof and deny the remainder of the ' allegations contained therein. Supreme Court Records Online Library - page 1 O of 21 10

12 51. With respect to paragraph "99" of the Counterclaims, the Plaintiffs neither : admit nor deny the allegations contained therein and respectfully refer the Court to the ' Order referred to therein for the true and accurate contents thereof. 52. With respect to paragraph "100" of the Counterclaims, Plaintiffs admit that they secured a bond in the amount of $215,000.00, neither admit nor deny the : remainder of the allegations contained therein to the extent they call for a legal. conclusion and respectfully refers the Court to the Bond referred to therein for the true and accurate contents thereof. 53. With respect to paragraph "101" of the Counterclaims, Plaintiffs neither ' admit nor deny the allegations contained therein and respectfully refer the Court to the Decision of the Appellate Division, First Department, referred to therein for the true and accurate contents thereof. 54. With respect to paragraph "102" of the Counterclaims, Plaintiffs neither admit nor deny the allegations contained in the first sentence of that paragraph,. respectfully refer the Court to the Decision referred to therein for the true and accurate ' contents thereof and admit that on or after November 29, 2011, Plaintiffs received Notice of Entry of a Decision of the Court of Appeals served by the Defendants. 55. Plaintiffs deny the allegations contained in paragraph "103" of the 56. Plaintiffs deny the allegations contained in paragraph "104" of the, Supreme Court Records Online Library - page 11 of 21 11

13 57. Plaintiffs deny knowledge or information sufficient to form a belief as to; the truth of the allegations contained in paragraph "105" of the Counterclaims and ' specifically deny that they owe use and occupancy to the Defendants in the amounts set : forth therein. AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' SEVENTH COUNTERCLAIM 58. With respect to paragraph "106" of the Counterclaims, Plaintiffs repeat and reallege each and every allegation set forth in this reply as if fully set forth herein. 59. Plaintiffs deny the allegations contained in paragraph "107" of the ' 60. Plaintiffs deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in if"108" of the 61. Plaintiffs deny knowledge or information sufficient to form a belief as to i the truth of the allegations set forth in if"l09" of the 62. Plaintiffs deny knowledge or information sufficient to form a belief as to : the truth of the allegations set forth in if"llo" of the 63. Plaintiffs deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in if"lll" of the 64. Plaintiffs deny the allegations contained in paragraph "112" of the : AS AND FOR PLAINTIFFS' RESPONSE TO DEFENDANTS' EIGHTH COUNTERCLAIM Supreme Court Records Online Library- page 12 of21 12

14 65. With respect to paragraph "113" of the Counterclaims, Plaintiffs repeat; and reallege each and every allegation set forth in this reply as if fully set forth herein. 66. Plaintiffs deny the allegations in paragraph "114" of the 67. Plaintiffs deny the allegations contained in paragraph "115" of the i 68. Plaintiffs deny the allegations contained in paragraph "116" of the 69. Plaintiffs deny the allegations contained in paragraph "117" of the With respect to paragraph "118" of the Counterclaims, Plaintiffs admit : that at the time of its formation, Harlem Real Estate LLC was formed for the purpose of ' acquiring the Premises and denies that it was its "sole" purpose and denies the remainder of the allegations contained therein. 71. Plaintiffs deny the allegations contained in paragraph "119" of the 72. Plaintiffs deny the allegations contained in paragraph "120" of the 73. Plaintiffs deny the allegations contained in paragraph "121" of the ' 74. With respect to paragraph "122" of the Counterclaims, Plaintiffs neither. admit nor deny the allegations contained therein and further state that Citarella Operating LLC did not operate the store. Supreme Court Records Online Library - page 13 of 21 13

15 75. With respect to paragraph "123" of the Counterclaims, Plaintiffs deny that ' Citarella Operating LLC had any obligation to pay rent for the store and deny the : remainder of the allegations contained therein. 76. With respect to paragraph "124" of the Counterclaims, Plaintiffs deny the allegations contained therein. 77. With respect to paragraph "125" of the Counterclaims, Plaintiffs deny that. HRE failed to collect rent and deny the allegations contained therein. 78. With respect to paragraph "126" of the Counterclaims, Plaintiffs neither : admit nor deny the allegations contained therein to the extent that same calls for a legal i conclusion. 79. Plaintiffs deny the allegations contained in paragraph "127" of the : 80. Plaintiffs deny the allegations contained in paragraph "128" of the AS AND FOR PLAINTIFF'S RESPONSE TO DEFENDANTS' COUNTERCLAIM THAT PLAINTIFFS HARLEM REAL ESTATE LLC AND CITARELLA OPERATING LLC SHOULD BE JOINTLY AND SEVERALLY LIABLE ON COUNTERCLAIMS THREE THROUGH SEVEN 81. With respect to paragraph "129" of the Counterclaims, Plaintiffs repeat and reallege each and every allegation set forth in this reply as if fully set forth herein. 82. Plaintiffs deny the allegations in paragraph "130" of the Supreme Court Records Online Library- page 14 of21 14

16 83. Plaintiffs neither admit nor deny the allegations contained in paragraph : "131" of the Counterclaims to the extent same calls for a legal conclusion and otherwise ; deny same. 84. Plaintiffs deny the allegations contained in paragraph "132" of the ' AS AND FOR A FIRST AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 85. The Defendants have failed to mitigate their damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 86. The Defendants have not suffered any damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 87. Accord and Satisfaction. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 88. Defendants' purported damages are speculative and/ or otherwise impossible to calculate. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 89. The City was the beneficial owner of the subject premises at the time of : the accrual some or all of the damages sought herein. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 90. The purported "emergency work" performed by the City was unnecessary and/ or the timing of performance was planned in an improper manner so as to attempt to burden Plaintiffs with the cost. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS Supreme Court Records Online Library - page 15 of 21 15

17 '. 91. Defendants are acting in bad faith. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 92. The Counterclaims are barred by Defendants' laches. AS AND FOR A NINTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 93. The Counterclaims fail to state a claim upon which relief can be granted. AS AND FOR A TENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 94. Some or all of the violations about which Defendants complain were : improperly issued and/ or were otherwise issued in bad faith for the purpose of harassing the Plaintiffs. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 95. Plaintiffs incorporate by reference all of the arguments raised in the Affidavit of Jonathan H. Freiberger, sworn to on April 12, 2012, and, inter alia, submitted in opposition to Defendants' motion for leave to serve an amended answer. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS ; 96. No waste was committed at the Premises. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 97. Some or all of the Counterclaims are barred by laches and/ or the, applicable statute of limitations. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS Supreme Court Records Online Library - page 16 of 21 16

18 herein. 98. The City was the Owner of the subject Premises at all relevant times AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS dealing. evidence. 99. The Defendants breached the implied warranty of good faith and fair i AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 100. The Defendants have been unjustly enriched. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 101. Citarella is not in contractual privity with Defendants. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 102. The Defendants have unclean hands. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 103. The Plaintiffs assert all available defenses based on documentary ' AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE TO THE COUNTERCLAIMS 104. The Defendants have released Plaintiffs from any and all liability. WHEREFORE, Plaintiffs demand judgment as follows: Supreme Court Records Online Library - page 17 of 21 17

19 a. dismissing Defendants' Counterclaims in their entirety; b. granting to Plaintiffs judgment for the relief sought in their Complaint; c. awarding to Plaintiffs costs and disbursements of this action; and, d. for such other and further relief as this Court shall deem just and, proper. Dated: Great Neck, New York August 7, 2012 GLEICH, SIEGEL & FARKAS LLP Attorneys for Plaintiffs HARLEM REAL ESTATE LLC and CITARELLA OPERATING LLC By:~?:> 36 South Station Plaza Great Neck, New York (516) To: Michael A. Cardozo, Esq. Corporation Counsel The City of New York Attorney for Defendants 100 Church Street, Room New York, New York (212) Attn: Alan Kleinman, Esq. 18 Supreme Court Records Online Library - page 18 of 21

20 VERIFICATION STATEOFNEWYORK ) ) ss: COUNTY OF NASSAU ) perjury that: STEPHAN B. GLEICH, an attorney at law, hereby affirms under the penalties of 1. I am the attorney for the Plaintiffs in the action herein. 2. I have read the annexed Reply to Amended Counterclaims, know the, contents thereof and the same are true to my knowledge, except, those matters therein' which are stated to be alleged on information and belief, and as to those matters, I : believe them to be true. 3. My belief as to those matters therein not stated upon knowledge, is based i upon the books and records of the Plaintiffs. 4. This affirmation is made by affirmant pursuant to CPLR 3020 (d) because: the Plaintiff is in a county other than the county of affirmant' s office. Dated: Great Neck, New York August 7, 2012 STEPHAN B. GLEICH Supreme Court Records Online Library - page 19 of 21 19

21 ~, '.f. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X HARLEM REAL ESTATE LLC and CITARELLA OPERATING LLC, Plaintiffs, Index No.: /06 AFFIDAVIT OF SERVICE -against- NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION and THE CITY OF NEW YORK, Defendants X STATE OF NEW YORK : ss.: COUNTY OF NASSAU ) Sabrina M. Rosa, being duly sworn, deposes and says: I am not a party to the action, am over the age of eighteen years and reside at Bellerose, New York. On August 7, 2012, I served the within REPLY TO AMENDED. COUNTERCLAIMS by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service, addressed to the ; address of the addressee(s) indicated below, which has been designated for service by ' the addressee(s) or, if no such address has been designated, it is the last known address : of the addressee( s): Michael A. Cardozo Corporation Counsel City of New York 100 Church Street, Room New York, New York Attn: Alan Kleinman, Esq. AAfroJn. ~ Sabrina M. Rosa Sworn to before me this 7th day of August, 2012 JONATHAN H. FREIBERGER Notary Public, Stete Of New York No. 02FR Qualified In Suffolk County I:/_ Commission Expires December 27, 20 li Supreme Court Records Online Library- page 20 of21

22 "' c u " 3 ro () 0 c,, " 8 a. " 0 0 c 0 ro r 5' iil " PLEASE TAKE NOTICE D that th. within is a (certified) true copy of a entered in the office of the clerk of the within named Court on D that an Order of which the wilhin ts a true copy will be presented for sejj/ement to the Honorable one of the judges of the within named Court at on, at GLEICH, SIEGEL & FARKAS LLP Attomrys for 36 SOUTH STATION PLAZA GREAT NECK, NY Pursuant to 22 NYCRR a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, ( 1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading. (i) the matter was not obtained Jhrough illegal conduct, or that if it was. the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the. matter involves potential claims for personal injury or wrong/ul death, the matter was not obtained in violation o/22 NYiif20041-<L ~ Dated: I? GLEICH, SIEGEL & Attomrys for To.Att.mry(s)far 36 SOUTH STATION PLAZA GREAT NECK, NY LLP Index No /06 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARLEM REAL ESTATE LLC and CITARELLA OPERATING LLC, -against- Plaintiffs, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION AND THE CITY OF NEW YORK, Defendants ~ X To Attomry(s) far Service of a copy of the within Dated: Attomry(s)far REPLY TO AMENDED COUNTERCLAIMS GLEICH, SIEGEL & FARKAS LLP Attororys for Plaintiffs 36 SOUTH STATION PLAZA GREAT NECK, NY (516) is herelry admitted.